Criminal Law Casebook - Developments in leading appellate courts

Observations on leading cases in criminal law around the world from 2004 to 2014. The link to the Index allows this site to be used as an online textbook. Aimed at Masters and above, and specialist practitioners. The 600 case commentaries are from August 2004 to August 2014. Occasional entries from then, mainly book reviews.

Thursday, March 01, 2018

In today’s decision Attorney-General v Smith[2018]
NZCA 24 the Court of Appeal observed at [47] that

“... any rights analysis must begin with
the presumption that Mr Smith [a sentenced prisoner] has the common law right
to wear a wig if he wishes, simply because it is not illegal to do so.”

Sometimes cases are brought on grounds which obscure
basic issues. There can be few points more basic in this context than the rights
of people to do things that are not unlawful. Instead of relying on that right,
it seems that this case was brought alleging a breach of the New Zealand Bill
of Rights Act 1990, s 14. Arguments therefore were diverted to the issues
whether wig-wearing is an “expression” within the terms of that section.

Indeed, as things are between the parties, the dispute
is settled and the issue is moot, and the Court of Appeal only issued a
judgment because the issue of the engagement of s 14 “raises an important
question with potential application in other cases” (at [26]).

You may wonder, as I do, why Mr Smith should want to
wear a wig, given that mature men with full heads of hair look like elderly
children.

Friday, February 02, 2018

The New Zealand Law Commission has published its Review of the Search and Surveillance Act
2012 (the SSA): NZLC R 141 (dated
June 2017, but published on 30 January 2018).

With the aim of assisting officials who are conducting
searches, the Commission recommends the enactment of principles. It
acknowledges that the final wording of these principles may need revision. We
can reasonably ask whether, in their present form, they will be of real use to
those officials. Are these principles the product of armchair theorising, or
will they usefully guide officers in law enforcement? Do all people have the
same understanding of principles?

Here are the Commission’s proposed principles, with
questions that I suggest may properly be asked.

Principle 1: conduct that may constitute
an intrusion into the reasonable expectations of privacy of any individual
should be carried out pursuant to a warrant, order, statutory power or policy
statement;

From a constable’s point of view, what is a “reasonable”
expectation of privacy, given that the constable is of the view that there are
reasonable grounds to believe that evidence of an offence will be discovered?
What are the discretionary considerations implied by “should”? What “statutory
power” is relevant other than those in the SSA? Does this principle say any
more than that the constable “should” obey the law?

Why not introduce a definition of “search”, and a
provision stating that searches carried out otherwise than pursuant to the
provisions of the SSA are unlawful?

Principle 2: a warrant or order should
be obtained in preference to exercising a warrantless power;

What is “in preference”? The constable’s personal
preference? Again with the “should”. Why is this just a principle and not a
requirement with explicit exceptional conditions permitting warrantless
searches? Are the grounds for a warrant more stringent than the grounds for a
warrantless search?

Principle 3: State intrusion into an
individual’s privacy should be proportionate to the public interest in the investigation and
prosecution of the offence or the maintenance of the law;

Seriously, is a constable really expected to carry out
this proportionality evaluation? Is a constable ever going to decide that no,
in this case enforcement of the law doesn’t matter? Is this more helpful than
requiring searches to be carried out reasonably – which itself is hardly more useful
to a constable than saying “don’t be silly”.

Principle 4: powers under the Act should
be exercised in a manner that minimises the level of intrusion on the privacy of any
individuals likely to be affected;

Yes, well intended, but how is a constable to decide,
in the quest for evidence that is reasonably believed to exist, when an
intrusion on privacy is unnecessary? Again, is this no more helpful that
telling the officer not to overdo it?

Principle 5: powers under the Act should
be exercised having regard to te ao Māori (the Māori dimension) and any other
relevant cultural, spiritual or religious considerations;

But all people are equal. What does “have regard to”
mean? Do cultural, spiritual or religious considerations have priority? Are all
cultural, spiritual or religious considerations of equal importance? The Seiks’
kirpans are weapons, aren’t they? Are there to be dispensations?

Principle 6: powers under the Act should
be exercised in a manner that minimises the impact on children and vulnerable
members of the community;

Yes. Don’t be rude, don’t be rough, and don’t
gratuitously cause stress. Or, be as nice as possible.

Principle 7: powers under the Act should
be exercised in a manner that protects any privilege held by, or available to,
any individual.

How is a constable to know when a person has a
privilege, for example, against self-incrimination in respect of an offence which is not going to be charged? What does “protects” mean?

I hope not to encourage cynicism, but the words of Posner in Divergent Paths (see my note) at p 128 come to mind:"The anxiety is that law really is not a rigorous
field (which is true) but a field dominated by hunch and priors and rough
balancing of competing considerations given only subjective weights, and by
often inaccurate facts and lying or muddled witnesses and sly lawyers and
confused or disingenuous judges."

Divergent applications of principles can occur not
only because people have different objectives, but also when they include interpretive
concepts (in the sense used by Dworkin; see my review
of Justice for Hedgehogs). We might
all agree on what a “reasonable expectation of privacy” is, but we may differ
on what is an example of it. Similarly with concepts of proportionality, minimal
intrusion, relevant cultural, spiritual or religious considerations, vulnerable
members of the community, and protection of privilege. Rather than being
unifying, principles may foster divergent answers to the question of what conduct
should be permitted. Dworkin's theory suggests that in order to agree on instances of interpretive concepts people need to agree on ethics (how one should live) and morality (how one should treat others), and this requires recognition of the equal importance of all lives, and the need for people to take responsibility for their own lives. For present purposes the point is that a principle can require quite a lot of unpacking before its message in a particular case is revealed.

It is fair to ask whether application of any of the
suggested principles could have influenced police conduct in, and the outcomes
of, admissibility cases. Of those decided by the Court of Appeal under s 30 of
the Evidence Act 2006 in 2017 (see my summary , at para [110], of
these), there were only two where evidence obtained by improper search was
inadmissible. In one a police dog bit the defendant on the arm during his
apprehension and arrest, medical attention was required, and evidence found on
the defendant but which was not central to the prosecution was inadmissible. In
the other case, also involving the inadmissibility of evidence that was not
central to the prosecution, a phone was searched during a detention that was
unlawful and there was opportunity for the police to obtain a warrant. It is
arguable that in this case a statutory principle could have affected police
conduct, but so could proper administrative instructions given within the
police organisation. There were two other cases which could be considered as
searches because information was obtained from the defendant’s body: in one DNA
evidence was excluded where there had been a breach of the statutory code of
procedure in relation to DNA samples, and in the other the circumstances
strongly suggested that the defendant had been badly beaten while being unlawfully detained in police
custody and before medical evidence was obtained of his being under the influence of alcohol to the extent of being incapable of driving. It is doubtful that in either of those cases principles would
have changed police behaviour.

Although hardly a statistically significant sample, at
least it shows that in one year there was only one case of improper search where statutory principles
might have affected police conduct to the extent that evidence would not have
been ruled inadmissible. That was a warrant-preference case. Again,
instructions given within the police service should be just as effective as a
statutory principle.

Furthermore, a constable who gives evidence reciting
statutory principles is likely to be believed in claiming that in the
particular circumstances it was necessary, and not inconsistent with those
principles, to act in the way that occurred. This could reduce the accuracy of
fact-finding.

Monday, January 01, 2018

It is impossible to have more fun than to spend a
little time in the holidays reading Richard A Posner, Divergent Paths: The Academy and the Judiciary (Harvard University
Press, Cambridge Mass., and London, 2016). Here is a snippet (p 13):

“Law schools will do almost
anything to boost their ranking in U.S.
News & World Report, which treats faculty-student ratio and number of
library books as plus factors in the ranking, though they have little (library
books virtually nothing) to do with the quality of legal education.”

And on the topic of judicial embrace of multifactor
tests as aids to judicial decision making, which Judge Posner calls a common
pretense of analytical rigour in adjudication, (p 117):

“Not only is the list of
factors usually open-ended and therefore incomplete, but the factors are rarely
given weights, and so unless all line up on one side of the dispute no decision
can be derived from them; they are window dressing.”

And as a federal appellate judge, Posner has this to
say about judicial disagreements (p 235):

“The problem of feuding
federal judges would be solved in a trice if the Chief Justice summoned them to
his office in Washington and told them to stop behaving like children.”

Well, I’m not trying to summarise what Posner says in
this endlessly interesting book. We who are not Americans can easily see its
relevance to our own legal environment.

Posner, who, to put it mildly, is one of the more intelligent
judges, embraces Bayesian reasoning with conditional probabilities. A small
glitch – surprising and ironic - occurs on pp 338-339 (if my Kindle's pagination is correct) in his illustration of
why lawyers need to be able to understand DNA evidence. But never mind.

I have, over the years of writing this blog, referred
to Posner on several occasions. His fearless brilliance is an inspiration for
jurists, and his enthusiasm brings both joy and outrage. And laughter.

About Me

I have practised as a barrister since 1978, and in 1980 I completed my Ph.D. in criminal law. I have taught Advanced Criminal Law at the University of Auckland, and am the author of "Misuse of Drugs", our textbook on drug offences which is available in hardcopy and also electronically by subscription from Thomson Reuters. I am also a contributing and updating author of "Adams on Criminal Law", and a joint author of "Criminal Procedure in New Zealand" (Thomson Reuters, 2013 and 2 ed 2015). I have given seminar papers for the Auckland District Law Society and the New Zealand Law Society, and have had many papers published on criminal law and evidence topics.